Citation Nr: 0010282
Decision Date: 04/18/00 Archive Date: 04/28/00
DOCKET NO. 96-28 944 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for pulmonary
tuberculosis, including the issue of whether the disability
had been incurred in the line of duty.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran had active service between October 1935 and March
1938. He had another period of service which has been
recognized as extending from January 1941 to May 1945. That
period was terminated by an other than honorable discharge
due to desertion in April 1941.
In November 1949 the Department of Veterans Affairs (VA) held
that the veteran's discharge from the period of service
ending in May 1945 was under dishonorable conditions and was
a bar of VA benefits. In a November 1949 rating action the
regional office denied entitlement to service connection for
pulmonary tuberculosis based on the character of his
discharge from service. In February 1993 the veteran
submitted additional information for the purpose of reopening
his claim and in March 1993 the VA Regional Office (RO),
Indianapolis, Indiana, confirmed and continued the prior
denial. The veteran appealed from the decision. The case is
now before the Board for appellate consideration.
REMAND
The record reflects that the veteran was treated for
pulmonary tuberculosis at the Indiana State Sanatorium on
several occasions from July 1942 to April 1945. He was also
treated for pulmonary tuberculosis at a VA medical center
during July and August 1949.
In September 1976 the Army Board for Correction of Military
Records submitted a request to the regional office for VA and
any military records pertaining to the veteran.
In February 1979 the veteran submitted a claim for VA
disability pension benefits. In connection with the claim a
copy of proceedings by the Army Discharge Review Board dated
in June 1978 reflecting an upgrade of his 1945 discharge to a
general discharge was received. The record of proceedings
confirmed that the veteran had been absent without leave from
April 1941 to May 1945, and that his discharge had been due
to misconduct-desertion.
In March 1979 the regional office denied the veteran's claim
and the veteran appealed from the decision.
In December 1979 the Army Board for Correction of Military
Records (BCMR) again submitted a request to the regional
office for VA and military records pertaining to the veteran.
No record of any subsequent determination by the BCMR is of
record.
In February 1980 the Board of Veterans' Appeals held that the
character of the veteran's discharge from service in 1945
constituted a bar to the receipt of VA pension benefits. It
was noted that in June 1978 the veteran's 1945 discharge had
been upgraded to a discharge under honorable conditions by
the Army Discharge Review Board, a body established under the
provisions of 10 U.S. Code § 1553. However, it was noted
that an honorable or general discharge issued after
October 8, 1977, by a Discharge Review Board established
under that section of the Code did not remove a bar to
benefits where the discharge was as a deserter. 38 C.F.R.
§ 3.12(c).
In connection with the veteran's recent claim, there is a VA
Form 119 dated in March 1999 reflecting that the BCMR had
been contacted. The BCMR advised that the veteran's claim
had been closed in 1995. It was indicated that a copy of any
decision or disposition could not be provided. Although the
RO assumed that this meant that a decision had been entered
in 1995, that is not clear from the record. It is possible
that the claim which generated the 1979 letter had been
pending since that time and was simply closed
administratively in 1995
In April 1999 the regional office wrote to the veteran asked
that he provide a copy of any decision by the Board of
Military Correction (sic) in his case. However, in August
1999 the regional office received information from the
veteran's representative that, according to his wife, he had
been in a nursing home for three years with Alzheimer's
disease and was not responsive.
A VA Form 119 dated in February 2000, shows that contact with
an employee at the BCMR resulted in information that a
computer showed a decision had been made in the veteran's
case (no date for the decision was specified) but the file
had been sent to the archives.
In March 2000 the Board of Veterans' Appeals obtained
information from the BCMR that there were no records of the
veteran available at that Board and that the National
Personnel Records Center, St. Louis would have to be
contacted to obtain any records.
The veteran's representative has requested that records from
the BCMR be obtained in connection with the veteran's appeal.
In this regard, the VA has a duty to assist the veteran where
there are records which have been alleged to exist and which
can be construed as being in the constructive possession of
the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED to the regional office for
the following action:
1. A field examination should be
scheduled to contact the veteran and his
wife to verify that the veteran is in a
nursing home and is not responsive and to
obtain copies of any documentation or
correspondence received from either the
Discharge Review Board or the BCMR
regarding any determination made at any
time in his case. A copy of this remand
request must be furnished to the field
examiner along with the examination
request. Any information obtained from
the veteran or his wife should be
included with the claims file.
2. The regional office should also
contact the National Personnel Records
Center and request that that center
provide copies of any records from the
Army Board for Correction of Military
Records pertaining to the veteran,
including any disposition made in his
case since 1978. Any such records
obtained should be associated with the
claims file.
3. The veteran's claim should then be
reviewed by the regional office. In this
regard, in addition to the laws and
regulations already considered,
consideration should be afforded the
provisions of 38 C.F.R. § 3.301(a) which
require that a disability be incurred in
the line of duty, and 38 C.F.R. § 3.1(m)
which specifies that the requirements as
to line of duty are not met if at the
time the disease was contracted the
veteran was avoiding duty by desertion or
was absent without leave which materially
interfered with the performance of his
military duty. Thus, in order to reach a
favorable determination in connection
with the veteran's claim, the BCMR would
have had to upgrade his discharge and
also give him full credit for service
performed from April 1941 to May 1945.
If the denial of the veteran's claim is
continued, he and his representative
should be sent a supplemental statement
of the case and be afforded the
appropriate time in which to respond.
When the above action has been completed the case should be
returned to the Board for further appellate consideration, if
otherwise in order. No action is required of the veteran
until he receives further notice.
The purpose of this REMAND is to obtain clarifying
information. The Board intimates no opinion as to the
disposition warranted in this case pending completion of the
requested action.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1999).
- 4 -